Patent troll’s attempt to hide behind a typo fails

The term “patent troll” has, perhaps unfairly, been bandied about quite a bit in recent years. While some experts believe that patents help spur innovation and protect the “little guys,” there are plenty who feel that non-practicing entities – companies that snatch up patents and produce nothing of substance – are indeed nasty trolls waiting under the bridge, ready to charge a toll to companies who cannot fight back.

Fortunately, there are companies like Newegg, which strive to be the “knight in shining armor,” ready to vanquish the vile patent trolls – even when they try to use sneaky tricks to draw out litigation. Such was the case with a bare-bones company known as Soverain Software, which extended a court battle over “shopping cart” patents for almost seven months on the back of a typographical error.

Back in January, it seemed that Newegg, an online retailer, had scored a decisive victory over Soverain, a company that is little more than a group of lawyers which holds a variety of patents. One set of patents applied to the concept of an online shopping cart, which Soverain used in a suit against Newegg. A Federal Circuit court, however, found that the patents covered technology that represented obvious applications of existing technology.

And that would have been the end of things – if not for one small typo. The suit focused on a series of claims, numbered 34-38. “Claim 34” established the concept of the online shopping cart, while the others represented variations on the idea, with various additions or alterations. Here is where the troll shows its sneakiness: The entire case was a showdown regarding Claim 34, but the ruling referenced Claim 35 – clearly an error. Newegg asked the panel to correct the document, but Soverain decided to take another shot, and requested to fully brief the issue.

In the end, though, this represented little more than a stalling tactic for Soverain. After arguments in June, a three-judge panel sided once again with Newegg, shutting down Soverain’s claims – and further attempts to draw out the matter. Many will see this ruling as a solid victory against patent trolls and, coupled with recent initiatives by states such as Minnesota, it appears that all levels of government are taking a stand against these entities that view patents as merely golden geese and not intellectual stimuli to jumpstart creativity.

Senior Editor and Community Manager

Rich Steeves

Richard P. Steeves is Senior Editor and Community Manager of InsideCounsel magazine, where he covers the intellectual property and compliance beats. Rich earned a B.A....